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Adults with Incapacity (Scotland) Act 2000

Type Act of the Scottish Parliament

Publication 2000-05-09

Last updated 2021-09-30

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

PART 1 — GENERAL

General

Intimation not required in certain circumstances

1

(1) The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any proceedings under this Act for or in connection with an adult.

(2) There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.

(3) Where it is determined that an intervention as mentioned in subsection (1) is to be made, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.

(4) In determining if an intervention is to be made and, if so, what intervention is to be made, account shall be taken of—

(a) the present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise) appropriate to the adult;

(b) the views of the nearest relative , named person and the primary carer of the adult, in so far as it is reasonable and practicable to do so;

(i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention; and

(ii) any person whom the sheriff has directed to be consulted,

in so far as it is reasonable and practicable to do so; and

(d) the views of any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible, in so far as it is reasonable and practicable to do so.

(5) Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his property, financial affairs or personal welfare, as the case may be, and to develop new such skills.

(6) For the purposes of this Act, and unless the context otherwise requires—

“adult” means a person who has attained the age of 16 years;

“incapable” means incapable of—acting; ormaking decisions; orcommunicating decisions; orunderstanding decisions; orretaining the memory of decisions,as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and

“incapacity” shall be construed accordingly.

(7) In subsection (4)(c)(i) any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a continuing attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed), relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;

(c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

Judicial proceedings

Medical treatment where guardian etc. has been appointed

2

(1) This section shall apply for the purposes of any application which may be made to and any other proceedings before the sheriff under this Act.

(2) An application to the sheriff under this Act shall be made by summary application.

(3) Unless otherwise expressly provided for, any decision of the sheriff at first instance in any application to, or in any other proceedings before, him under this Act may be appealed to the sheriff principal, and the decision upon such appeal of the sheriff principal may be appealed, with the leave of the sheriff principal, to the Court of Session.

(4) Rules made under section 32 of the Sheriff Courts (Scotland) Act 1971 (c.58) may make provision as to the evidence which the sheriff shall take into account when deciding whether to give a direction under section 11(1).

Powers of sheriff

3

(1) In an application or any other proceedings under this Act, the sheriff may make such consequential or ancillary order, provision or direction as he considers appropriate.

(2) Without prejudice to the generality of subsection (1) or to any other powers conferred by this Act, the sheriff may—

(a) make any order granted by him subject to such conditions and restrictions as appear to him to be appropriate;

(b) order that any reports relating to the person who is the subject of the application or proceedings be lodged with the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;

(d) make such interim order as appears to him to be appropriate pending the disposal of the application or proceedings.

(3) On an application by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult, the sheriff may give such directions to any person exercising—

(a) functions conferred by this Act; or

(b) functions of a like nature conferred by the law of any country,

as to the exercise of those functions and the taking of decisions or action in relation to the adult as appear to him to be appropriate.

(4) In an application or any other proceedings under this Act, the sheriff—

(a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the interests of the person who is the subject of the application or proceedings; and

(b) without prejudice to any existing power to appoint a person to represent the interests of the person who is the subject of the application or proceedings may, if he thinks fit, appoint a person to act for the purpose specified in paragraph (a).

(5) Safeguarding the interests of a person shall, for the purposes of subsection (4), include conveying his views so far as they are ascertainable to the sheriff; but if the sheriff considers that it is inappropriate that a person appointed to safeguard the interests of another under this section should also convey that other’s views to the sheriff, the sheriff may appoint another person for that latter purpose only.

(5A) In determining an application or any other proceedings under this Act, the sheriff shall, without prejudice to the generality of section 1(4)(a), take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services.

(5B) In subsection (5A), “independent advocacy services” has the same meaning as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

(6) The sheriff may, on an application by—

(a) the person authorised under the order;

(b) the adult; or

make an order varying the terms of an order granted under subsection (2)(a).

Judicial Factors (Scotland) Act 1889 (c.39)

4

(1) . . . the court may, having regard to section 1 and being satisfied that to do so will benefit an adult with incapacity, make an order that—

(a) certain information shall not be disclosed, or intimation of certain applications shall not be given, to the nearest relative of the adult;

(b) the functions of the nearest relative of the adult shall, during the continuance in force of the order, be exercised by a person, specified in the order , who is not the nearest relative of the adult but who—

(i) is a person who would otherwise be entitled to be the nearest relative in terms of this Act;

(ii) in the opinion of the court is a proper person to act as the nearest relative; and

(iii) is willing to so act; or

(2) An order made under subsection (1) shall apply only to the exercise of the functions under this Act of the nearest relative.

(3) The court may . . . make an order varying the terms of an order granted under subsection (1).

(3A) The court may make an order under subsection (1) or (3) only on the application of—

(a) the adult to whom the application relates; or

(b) any person claiming an interest in that adult's property, financial affairs or personal welfare.

(3B) The court may dispose of an application for an order under subsection (1) or (3) by making—

(a) the order applied for; or

(b) such other order under this section as it thinks fit.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Safeguarding of interests in Court of Session appeals or proceedings

5

(1) In determining any appeal or in any other proceedings under this Act the Court of Session—

(a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the interests of the person who is the subject of the appeal or other proceedings; and

(b) without prejudice to any existing power to appoint a person to represent the interests of the second mentioned person, may if it thinks fit appoint a person to act for the purpose specified in paragraph (a).

(2) Safeguarding the interests of a person shall, for the purposes of subsection (1), include conveying his views so far as they are ascertainable to the court; but if the court considers that it is inappropriate that a person appointed to safeguard the interests of another under this section should also convey that other’s views to the court, the court may appoint another person for that latter purpose only.

The Public Guardian

The Public Guardian and his functions

6

(1) The Accountant of Court shall be the Public Guardian.

(2) The Public Guardian shall have the following general functions under this Act—

(a) to supervise any guardian or any person who is authorised under an intervention order in the exercise of his functions relating to the property or financial affairs of the adult;

(b) to establish, maintain and make available during normal office hours for inspection by members of the public on payment of the prescribed fee, separate registers of—

(i) all documents relating to continuing powers of attorney governed by the law of Scotland;

(ii) all documents relating to welfare powers of attorney governed by the law of Scotland;

(iii) all authorisations relating to intromission with funds under Part 3;

(iv) all documents relating to guardianship orders under Part 6;

(v) all documents relating to intervention orders under Part 6,

in which he shall enter any matter which he is required to enter under this Act and any other matter of which he becomes aware relating to the existence or scope of the power, authorisation or order as the case may be;

(c) to receive and investigate any complaints regarding the exercise of functions relating to the property or financial affairs of an adult made—

(i) in relation to continuing attorneys;

(ii) concerning intromissions with funds under Part 3;

(iii) in relation to guardians or persons authorised under intervention orders;

(d) to investigate any circumstances made known to him in which the property or financial affairs of an adult seem to him to be at risk;

(da) to take part as a party in any proceedings before a court or to initiate such proceedings where he considers it necessary to do so to safeguard the property or financial affairs of an adult who is incapable for the purposes of this Act;

(e) to provide, when requested to do so, a guardian, a continuing attorney, a withdrawer or a person authorised under an intervention order with information and advice about the performance of functions relating to property or financial affairs under this Act;

(f) to consult the Mental Welfare Commission and any local authority on cases or matters relating to the exercise of functions under this Act in which there is, or appears to be, a common interest.

(3) In subsection (2)(c) any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a continuing attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed), relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.

(4) In subsection 2(f), where a function under this Act is delegated by a local authority to a person in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, the reference to a local authority includes a reference to that person.

The Public Guardian: further provision

7

(1) The Scottish Ministers may prescribe—

(a) the form and content of the registers to be established and maintained under section 6(2)(b) and the manner and medium in which they are to be established and maintained;

(b) the form and content of any certificate which the Public Guardian is empowered to issue under this Act;

(c) the forms and procedure for the purposes of any application required or permitted to be made under this Act to the Public Guardian in relation to any matter;

(d) the evidence which the Public Guardian shall take into account when deciding under section 11(2) whether to dispense with intimation or notification to the adult.

(2) The Public Guardian may charge the prescribed fee for anything done by him in connection with any of his functions under this Act and he shall not be obliged to act until such fee is paid.

(3) Any certificate which the Public Guardian issues under this Act shall, for the purposes of any proceedings, be conclusive evidence of the matters contained in it.

Expenses in court proceedings

8

(1) Where in any court proceedings (other than, in the case of a local authority, an application under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the purpose of protecting the interests of an adult, the court may make an award of expenses against the adult or against any person whose actings have resulted in the proceedings.

(2) Where in any court proceedings (other than, in the case of a local authority, an application under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the purpose of representing the public interest, the court may make an award of expenses against any person whose actings have resulted in the proceedings or on whose part there has been unreasonable conduct in relation to the proceedings.

The Mental Welfare Commission

Functions of the Mental Welfare Commission

9

(1) . . . The Mental Welfare Commission shall have the following general functions under this Act in relation to any adult to whom this Act applies by reason of, or by reasons which include, mental disorder—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) to consult the Public Guardian and any local authority on cases or matters relating to the exercise of functions under this Act in which there is, or appears to be, a common interest;

(d) where they are not satisfied with any investigation made by a local authority into a complaint made under section 10(1)(c), or where the local authority have failed to investigate the complaint, to receive and investigate any complaints relating to the exercise of functions relating to the personal welfare of the adult made—

(i) in relation to welfare attorneys;

(ii) in relation to guardians or persons authorised under intervention orders;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do so, with information and advice in connection with the performance of his functions in relation to personal welfare under this Act.

(2) A guardian or welfare attorney of such an adult or a person authorised under an intervention order in relation to such an adult or the local authority shall afford the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of the adult.

(3) In subsection (1)(d) any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

(4) In subsection (1)(c), where a function under this Act is delegated by a local authority to a person in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, the reference to a local authority includes a reference to that person.

(5) In subsection (1)(d), where a function under section 10(1)(c) is delegated by a local authority in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland)Act 2014, the references to a local authority are to be read as if they were references to the person to whom the function is delegated.

Local authorities

Functions of local authorities

10

(1) A local authority shall have the following general functions under this Act—

(a) to supervise a guardian appointed with functions relating to the personal welfare of an adult in the exercise of those functions;

(b) to consult the Public Guardian and the Mental Welfare Commission on cases or matters relating to the exercise of functions under this Act in which there is, or appears to be, a common interest;

(c) to receive and investigate any complaints relating to the exercise of functions relating to the personal welfare of an adult made—

(i) in relation to welfare attorneys;

(ii) in relation to guardians or persons authorised under intervention orders;

(d) to investigate any circumstances made known to them in which the personal welfare of an adult seems to them to be at risk;

(e) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do so, with information and advice in connection with the performance of his functions in relation to personal welfare under this Act.

(2) For the purposes of subsection (1)(d), “local authority” includes a local authority for an area in which the adult is present.

(3) The Scottish Ministers may make provision by regulations as regards the supervision by local authorities of the performance of their functions—

(a) by guardians, in relation to the personal welfare of adults under this Act;

(b) where the supervision has been ordered by the sheriff—

(i) by persons authorised under intervention orders;

(ii) by welfare attorneys.

(4) In subsection (1)(c) any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

Intimation

Intimation not required in certain circumstances

11

(1) Where, apart from this subsection, intimation of any application or other proceedings under this Act, or notification of any interlocutor relating to such application or other proceedings, would be given to an adult and the court considers that the intimation or notification would be likely to pose a serious risk to the health of the adult the court may direct that such intimation or notification shall not be given.

(2) Where, apart from this subsection and subsection (1), any intimation or notification to him under this Act would be given by the Public Guardian to an adult and the Public Guardian considers that the intimation or notification would be likely to pose a serious risk to the health of the adult the Public Guardian shall not give the intimation or notification.

Investigations

12

(1) In consequence of any investigation carried out under—

(a) section 6(2)(c) or (d) by the Public Guardian;

(b) section 9(1)(d) . . . by the Mental Welfare Commission; or

the Public Guardian, Mental Welfare Commission or local authority, as the case may be, may take such steps, including the making of an application to the sheriff, as seem to him or them to be necessary to safeguard the property, financial affairs or personal welfare, as the case may be, of the adult.

(2) For the purposes of any investigation mentioned in subsection (1), the Public Guardian, Mental Welfare Commission and local authority shall provide each other with such information and assistance as may be necessary to facilitate the investigation.

Codes of practice

13

(1) The Scottish Ministers shall prepare, or cause to be prepared for their approval, and from time to time revise, or cause to be revised for their approval, codes of practice containing guidance as to the exercise by—

(a) local authorities and their chief social work officers and mental health officers;

(b) continuing and welfare attorneys;

(d) guardians;

(e) withdrawers;

(f) managers of authorised establishments;

(g) supervisory bodies;

(h) persons authorised to carry out medical treatment or research under Part 5,

of their functions under this Act and as to such other matters arising out of or connected with this Act as the Scottish Ministers consider appropriate.

(2) Before preparing or approving any code of practice under this Act or making or approving any alteration in it the Scottish Ministers shall consult such bodies as appear to them to be concerned.

(3) The Scottish Ministers shall lay copies of any such code and of any alteration in it before the Parliament.

(4) The Scottish Ministers shall publish every code of practice made under this Act as for the time being in force.

Appeal against decision as to incapacity

14

A decision taken for the purposes of this Act, other than by the sheriff, as to the incapacity of an adult may be appealed by—

(a) the adult; or

(b) any person claiming an interest in the adult’s property, financial affairs or personal welfare relating to the purpose for which the decision was taken,

to the sheriff or, where the decision was taken by the sheriff, to the sheriff principal and thence, with the leave of the sheriff principal, to the Court of Session.

PART 2 — CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY

Creation of continuing power of attorney

15

(1) Where an individual grants a power of attorney relating to his property or financial affairs in accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of law, continue to have effect in the event of the granter’s becoming incapable in relation to decisions about the matter to which the power of attorney relates.

(2) In this Act a power of attorney granted under subsection (1) is referred to as a “continuing power of attorney” and a person on whom such power is conferred is referred to as a “continuing attorney”.

(3) A continuing power of attorney shall be valid only if it is expressed in a written document which—

(a) is subscribed by the granter;

(b) incorporates a statement which clearly expresses the granter’s intention that the power be a continuing power;

(ba) where the continuing power of attorney is exercisable only if the granter is determined to be incapable in relation to decisions about the matter to which the power relates, states that the granter has considered how such a determination may be made;

(c) incorporates a certificate in the prescribed form by a practising solicitor or by a member of another prescribed class that—

(i) he has interviewed the granter immediately before the granter subscribed the document;

(ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted another person (whom he names in the certificate) who has knowledge of the granter, that at the time the continuing power of attorney is granted the granter understands its nature and extent;

(iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates the granting of the power.

(4) A practising solicitor or member of another prescribed class may not grant a certificate under subsection (3)(c) if he is the person to whom the power of attorney has been granted.

(5) It is declared that the rule of law which provides that an agent's authority ends in the event of the bankruptcy of the principal or the agent applies, and has applied since subsection (1) came into force, in relation to continuing powers of attorney.

Creation and exercise of welfare power of attorney

16

(1) An individual may grant a power of attorney relating to his personal welfare in accordance with the following provisions of this section.

(2) In this Act a power of attorney granted under this section is referred to as a “welfare power of attorney” and an individual on whom such power is conferred is referred to as a “welfare attorney”.

(3) A welfare power of attorney shall be valid only if it is expressed in a written document which—

(a) is subscribed by the granter;

(b) incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power to which this section applies;

(ba) states that the granter has considered how a determination as to whether he is incapable in relation to decisions about the matter to which the welfare power of attorney relates may be made for the purposes of subsection (5)(b);

(c) incorporates a certificate in the prescribed form by a practising solicitor or by a member of another prescribed class that—

(i) he has interviewed the granter immediately before the granter subscribed the document;

(ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted another person (whom he names in the certificate) who has knowledge of the granter, that at the time the welfare power of attorney is granted the granter understands its nature and extent;

(iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates the granting of the power.

(4) A practising solicitor or member of another prescribed class may not grant a certificate under subsection (3)(c) if he is the person to whom the power of attorney has been granted.

(5) A welfare power of attorney—

(a) may be granted only to an individual (which does not include a person acting in his capacity as an officer of a local authority or other body established by or under an enactment); and

(b) shall not be exercisable unless—

(i) the granter is incapable in relation to decisions about the matter to which the welfare power of attorney relates; or

(ii) the welfare attorney reasonably believes that sub-paragraph (i) applies.

(6) A welfare attorney may not—

(a) place the granter in a hospital for the treatment of mental disorder against his will; ...

(b) consent on behalf of the granter to any form of treatment in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2);

(d) give, on behalf of the granter, an authorisation under, or by virtue of, section 6(1), 16F(1)(a), 17, 29(1) or 42(1) of the Human Tissue(Scotland) Act 2006 (asp 4);

(da) withdraw an authorisation, on behalf of the granter, by virtue of section 6A(1) of that Act;

(db) make, on behalf of the granter, an opt-out declaration by virtue of section 6B(1) of that Act;

(dc) withdraw an opt-out declaration, on behalf of the granter, by virtue of section 6C(1) of that Act; or

(e) make, on behalf of the granter, a nomination under section 30(1) of that Act

(7) A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the welfare attorney.

(8) Any reference to a welfare attorney—

(a) in relation to subsection (5)(b) in a case where the granter is habitually resident in Scotland; and

(b) in subsection (6),

shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

Attorney not obliged to act in certain circumstances

17

A continuing or welfare attorney shall not be obliged to do anything which would otherwise be within the powers of the attorney if doing it would, in relation to its value or utility, be unduly burdensome or expensive.

Power of attorney not granted in accordance with this Act

18

A power of attorney granted after the commencement of this Act which is not granted in accordance with section 15 or 16 shall have no effect during any period when the granter is incapable in relation to decisions about the matter to which the power of attorney relates.

Registration of continuing or welfare power of attorney

19

(1) A continuing or welfare attorney shall have no authority to act until the document conferring the power of attorney has been registered under this section.

(2) For the purposes of registration, the document conferring the power of attorney shall be sent to the Public Guardian who, if he is satisfied that a person appointed to act is prepared to act, shall—

(a) enter prescribed particulars of it in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be;

(b) send a copy of it with a certificate of registration to the sender;

(c) if it confers a welfare power of attorney, give notice of the registration of the document to both the local authority and the Mental Welfare Commission.

(3) The document conferring a continuing or welfare power of attorney may contain a condition that the Public Guardian shall not register it under this section until the occurrence of a specified event and in that case the Public Guardian shall not register it until he is satisfied that the specified event has occurred.

(4) A copy of a document conferring a continuing or welfare power of attorney authenticated by the Public Guardian shall be accepted for all purposes as sufficient evidence of the contents of the original and of any matter relating thereto appearing in the copy.

(5) The Public Guardian shall—

(a) on the registration of a document conferring a continuing or welfare power of attorney, send a copy of it to the granter; . . .

(b) where the document conferring the continuing or welfare power of attorney so requires, send a copy of it to not more than two specified individuals or holders of specified offices or positions.

(c) where the document confers a welfare power of attorney and the local authority requests a copy of it, send such a copy to the local authority; and

(d) where the document confers a welfare power of attorney and the Mental Welfare Commission requests a copy of it, send such a copy to the Mental Welfare Commission.

(6) A decision of the Public Guardian under subsection (2) as to whether or not a person is prepared to act or under subsection (3) as to whether or not the specified event has occurred may be appealed to the sheriff, whose decision shall be final.

Powers of sheriff

20

(1) An application for an order under subsection (2) may be made to the sheriff by any person claiming an interest in the property, financial affairs or personal welfare of the granter of a continuing or welfare power of attorney.

(2) Where, on an application being made under subsection (1), the sheriff is satisfied that the granter is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare insofar as the power of attorney relates to them, and that it is necessary to safeguard or promote these interests, he may make an order—

(a) ordaining that the continuing attorney shall be subject to the supervision of the Public Guardian to such extent as may be specified in the order;

(b) ordaining the continuing attorney to submit accounts in respect of any period specified in the order for audit to the Public Guardian;

(c) ordaining that the welfare attorney shall be subject to the supervision of the local authority to such extent as may be specified in the order;

(d) ordaining the welfare attorney to give a report to him as to the manner in which the welfare attorney has exercised his powers during any period specified in the order;

(e) revoking—

(i) any of the powers granted by the continuing or welfare power of attorney; or

(ii) the appointment of an attorney.

(3) Where the sheriff makes an order under this section the sheriff clerk shall send a copy of the interlocutor containing the order to the Public Guardian who shall—

(a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be;

(b) notify—

(i) the granter;

(ii) the continuing or welfare attorney;

(iii) where it is the welfare attorney who is notified, the local authority and . . . the Mental Welfare Commission;

(iv) where the sheriff makes an order under subsection (2)(c), the local authority.

(4) A decision of the sheriff under subsection (2)(a) to (d) shall be final.

(5) In this section any reference to—

(a) a continuing power of attorney shall include a reference to a power (however expressed) under a contract, grant or appointment governed by the law of any country, relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;

(b) a welfare power of attorney shall include a reference to a power (however expressed) under a contract, grant or appointment governed by the law of any country, relating to the granter’s personal welfare and having effect during the granter’s incapacity,

and “continuing attorney” and “welfare attorney” shall be construed accordingly.

Records: attorneys

21

A continuing or welfare attorney shall keep records of the exercise of his powers.

Notification to Public Guardian

22

(1) After a document conferring a continuing or welfare power of attorney has been registered under section 19, the attorney shall notify the Public Guardian—

(a) of any change in his address;

(b) of any change in the address of the granter of the power of attorney;

(d) of any other event which results in the termination of the power of attorney,

and the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be and shall notify the granter (in the case of an event mentioned in paragraph (a) or (d)) and, where the power of attorney relates to the personal welfare of the adult, both the local authority and . . . the Mental Welfare Commission.

(2) If, after a document conferring a continuing or welfare power of attorney has been registered under section 19, the attorney dies, his personal representatives shall, if aware of the existence of the power of attorney, notify the Public Guardian who shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be, and shall notify the granter and, where the power of attorney relates to the personal welfare of the adult, both the local authority and . . . the Mental Welfare Commission.

Resignation of continuing or welfare attorney

23

(1) A continuing or welfare attorney who wishes to resign after the document conferring the power of attorney has been registered under section 19 shall give notice in writing of his intention to do so to—

(a) the granter of the power of attorney;

(b) the Public Guardian;

(d) the local authority, where they are supervising the welfare attorney.

(2) Subject to subsection (4), the resignation shall not have effect until the expiry of a period of 28 days commencing with the date of receipt by the Public Guardian of the notice given under subsection (1); and on its becoming effective the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be.

(3) Where the resignation is of a welfare attorney, the Public Guardian shall notify the local authority and . . . the Mental Welfare Commission.

(4) The resignation of a joint attorney, or an attorney in respect of whom the granter has appointed a substitute attorney, shall take effect on the receipt by the Public Guardian of notice under subsection (1)(b) if evidence that—

(a) the remaining joint attorney is willing to continue to act; or

(b) the substitute attorney is willing to act,

accompanies the notice.

Termination of continuing or welfare power of attorney

24

(1) If the granter and the continuing or welfare attorney are married to each other the power of attorney shall, unless the document conferring it provides otherwise, come to an end upon the granting of—

(a) a decree of separation to either party;

(b) a decree of divorce to either party;

(1A) If the granter and the continuing or welfare attorney are in civil partnership with each other the power of attorney shall, unless the document conferring it provides otherwise, come to an end on the granting of—

(a) a decree of separation of the partners in the civil partnership;

(b) a decree of dissolution of the civil partnership;

(2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the appointment of a guardian with powers relating to that matter.

(3) In subsection (2) any reference to—

(a) a continuing attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed), relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;

(b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

(4) No liability shall be incurred by any person who acts in good faith in ignorance of—

(a) the coming to an end of a power of attorney under subsection (1) or subsection (1A) ; or

(b) the appointment of a guardian as mentioned in subsection (2),

nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.

PART 3 — ACCOUNTS AND FUNDS

Authority to intromit with funds

25

(1) A person mentioned in subsection (2) may apply to the Public Guardian for a certificate authorising the person to intromit with an adult's funds.

(2) Those persons are—

(a) an individual (other than an individual acting in his capacity as an officer of a local authority or other body established by or under an enactment);

(b) two or more individuals who wish to act jointly; or

(3) An application under subsection (1) which is accompanied by an application under section 24D may only be granted if—

(a) an account is opened in pursuance of section 24D(5); and

(b) prescribed particulars of that account are notified to the Public Guardian in pursuance of section 24D(7).

(4) Where the Public Guardian grants an application under subsection (1), the Public Guardian must—

(a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

(b) issue a certificate of authority (a “withdrawal certificate”) to the applicant.

(5) No application may be made under subsection (1) if a person is already authorised to intromit with the funds of the adult to whom the application relates (unless the application is made by that person).

(6) In this Act, an individual or a body who holds a valid withdrawal certificate issued under this Part is referred to as a “withdrawer”.

Application for authority to intromit

26

(1) An application under section 25(1) must—

(a) state the purposes of the proposed intromission with the adult's funds, setting out the specific sums relating to each purpose;

(b) specify an account held by a fundholder in the adult's sole name which the applicant wishes to use for the purpose of intromitting with the adult's funds (or be accompanied by an application under section 24D to open an account for that purpose);

(c) contain an undertaking that the applicant will open an account (the “designated account”) solely for the purposes of—

(i) receiving funds transferred under the authority of any certificate granted; and

(ii) intromitting with those funds;

(2) The application may also specify another account held by a fundholder in the adult's sole name which the applicant also wishes to use for the purpose of intromitting with the adult's funds (or be accompanied by an application under section 24D to open an account for that purpose).

(3) In this Part—

(a) the account specified or, as the case may be, opened for the purposes of subsection (1)(b) is referred to as the adult's current account.

(b) the account specified or, as the case may be, opened for the purposes of subsection (2) is referred to as the adult's second account.

Notification of change of address

27

An application under section 24C, 24D, 25, 26B, 26D, 26F or 26G must—

(a) be signed by the applicant;

(b) contain the name and addresses of the nearest relative, named person and primary carer of the adult, if known;

(i) where it is required to be countersigned under section 27A, the day the application is so countersigned, or

(ii) in any other case, the day the application is signed by the applicant as mentioned in paragraph (a).

Purposes of intromissions with funds

28

(1) The fundholder of an adult's current account may act on the instructions of a withdrawer to the extent authorised by the withdrawal certificate issued to the withdrawer.

(2) The fundholder of an adult's current account presented with a withdrawal certificate must not allow any operations to be carried out on that account other than those carried out in accordance with the certificate by the withdrawer.

(3) The fundholder of an adult's current account or an adult's second account presented with a withdrawal certificate may provide the withdrawer with a copy of any statement or other correspondence issued by the fundholder to the adult during the period when the withdrawal certificate is valid.

Withdrawal and use of funds

29

The fundholder of an account mentioned in section 28 or 28A is liable to the adult for any funds removed from the account under that section at any time when it was aware that the withdrawer's authority had been terminated or suspended by the Public Guardian under section 31A but, on meeting such liability, the fundholder of the account has a right of relief against the withdrawer.

Records and inquiries

30

(1) The Scottish Ministers may by regulations provide that a withdrawer shall keep a record of his intromissions with the funds and that the Public Guardian may at any time require a withdrawer to produce such record for the Public Guardian’s inspection.

(2) The Public Guardian may—

(a) make inquiries from time to time as to the manner in which a withdrawer has exercised his functions under this Part; and

(b) ask the withdrawer to produce any records which he has relating to his intromissions.

(3) The Public Guardian may require a fundholder of an account in the name of an adult or of a designated account to make its records of the account available for inspection by the Public Guardian.

(4) A fundholder complying with a requirement under subsection (3) may charge a reasonable fee for doing so and may recover that fee from the account concerned.

Duration and termination of registration

31

(1) Unless this Part provides otherwise, a withdrawal certificate issued under section 25 is valid for a period of 3 years commencing with the date of issue of the certificate.

(2) The Public Guardian may reduce or extend the period of validity of a withdrawal certificate; and an extension may be without limit of time.

(3) Subsections (1) and (2) are without prejudice to the right of the withdrawer to make subsequent applications under section 25 after the withdrawal certificate ceases to be valid or, as the case may be, a suspension or termination of the withdrawer's authority.

(4) The validity of a withdrawal certificate ceases—

(a) on the appointment of a guardian with powers relating to the funds or account in question;

(b) on the granting of an intervention order relating to the funds or account in question; or

but no liability is incurred by any person who acts in good faith under this Part in ignorance of the withdrawal certificate ceasing to be valid under this subsection.

Joint accounts

32

Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other joint account holder may continue to operate the account unless—

(a) the terms of the account provide otherwise; or

(b) he is barred by an order of any court from so doing.

Transfer of funds

33

(1) The Public Guardian may, on an application made at the same time as, or at any time after, an application for authority to intromit with funds held in a specified account by a fundholder, authorise the transfer of funds from that account to another specified account.

(2) In subsection (1), “specified” means specified in the application to transfer funds and in the authorisation of that transfer; and the account to which funds are transferred may be specified as to kind of account.

(3) A decision of the Public Guardian under subsection (1) may be appealed to the sheriff, whose decision shall be final.

Disapplication of Part 3

34

(1) This Part shall not apply in the case of an adult in relation to whom—

(a) there is a guardian or continuing attorney with powers relating to the funds or account in question; or

(b) an intervention order has been granted relating to the funds or account in question,

but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such appointment or grant.

(2) In this section any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a continuing attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed), relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.

PART 4 — MANAGEMENT OF RESIDENTS’ FINANCES

Application of Part 4

35

(1) Subject to subsection (3), this Part applies to the management of the matters set out in section 39 relating to any resident of any of the following establishments—

(a) a health service hospital ;

(b) an independent hospital or private psychiatric hospital. . . ;

(d) a care home service; and

(e) a limited registration service.

(2) In this Part establishments mentioned in paragraph (b), (d) or (e) of subsection (1) are referred to as “registered establishments”, all other establishments mentioned in subsection (1) are referred to as “unregistered establishments”, and registered and unregistered establishments together are referred to as “authorised establishments”.

(3) This Part shall not apply to a registered establishment where notice in writing is given to the supervisory body by—

(a) the managers of the registered establishment; or

(b) an applicant, under section 59(1) of the Public Services Reform (Scotland) Act 2010 (asp 8) or section 10P(1) of the National Health Service (Scotland) Act 1978, as the case may be, for registration of the service which comprises that establishment,

that it shall not apply.

(4) The Scottish Ministers may by regulations amend the list of authorised establishments set out in subsection (1).

(5) In this Part, “the managers” has the meaning set out in schedule 1; and “resident” in relation to an authorised establishment means an adult whose main residence for the time being is the authorised establishment or whose detention there is authorised by virtue of the Criminal Procedure (Scotland) Act 1995 (c. 46) or the 2003 Act .

(6) Expressions used in subsection (1) and in

(a) the Public Services Reform (Scotland) Act 2010 have the same meanings in that subsection as in that Act;

(b) the National Health Service (Scotland) Act 1978 (c.29) have the same meanings in that subsection as in that Act.

Registration for purposes of managing residents' finances

36

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Residents whose affairs may be managed

37

(1) The managers of an authorised establishment shall be entitled to manage on behalf of any resident in the establishment in relation to whom a certificate has been issued under subsection (2) any of the matters set out in section 39.

(2) Where the managers of an authorised establishment, having considered all other appropriate courses of action, have decided that management on behalf of the resident of the matters set out in section 39 by them is the most appropriate course of action, they shall cause to be examined by a medical practitioner any resident in the establishment who they believe may be incapable in relation to decisions as to, or of safeguarding his interest in, any of the resident’s affairs referred to in section 39; and if the medical practitioner finds that the resident is so incapable he shall issue a certificate in prescribed form to that effect.

(3) Subject to subsection (8), the managers of the authorised establishment shall intimate their intention of requiring an examination under subsection (2) to the resident and to the resident’s nearest relative and named person.

(4) Subject to subsection (8), the managers of the authorised establishment shall—

(a) send a copy of the certificate to the resident and to the supervisory body, who shall notify the resident’s nearest relative and named person;

(b) notify the resident and the supervisory body that they intend to manage the resident’s affairs.

(5) Notification under subsection (4)(b) shall include a statement as to what other courses of action had been considered and why they were not considered appropriate.

(6) The medical practitioner who certifies under this section shall not—

(a) be related to the resident or to any of the managers of the authorised establishment;

(b) have any direct or indirect financial interest in the authorised establishment.

(7) A certificate—

(a) shall be reviewed where it appears to the managers of the authorised establishment, the medical practitioner who certifies under this section or any person having an interest in any of the resident’s affairs mentioned in section 39 that there has been any change in the condition or circumstances of the resident bearing on the resident’s incapacity; and

(b) shall expire 3 years after it was issued.

(8) If the managers of the authorised establishment consider that intimation to the resident under subsection (3) or any action under subsection (4) would be likely to pose a serious risk to the health of the resident they may apply to the supervisory body for a direction that they need not make the intimation or take the action.

(9) The Scottish Ministers may prescribe the evidence which the supervisory body shall take into account in reaching a decision under subsection (8).

Financial procedures and controls in registered establishments

38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Matters which may be managed

39

(1) The matters which may be managed under this Part by the managers of an authorised establishment are—

(a) claiming, receiving, holding and spending any pension, benefit, allowance or other payment other than under the Social Security Contributions and Benefits Act 1992 (c.4), the State Pensions Credit Act 2002 (c. 16), Part 1 of the Welfare Reform Act 2007 or Part 1 or 4 of the Welfare Reform Act 2012;

(b) claiming, receiving, holding and spending any money to which a resident is entitled;

(d) disposing of such moveable property,

and in this Part these matters, or any of them, are referred to as residents’ affairs; and cognate expressions shall be construed accordingly.

(2) In managing these matters, the managers of an authorised establishment shall—

(a) act only for the benefit of the resident; and

(b) have regard to the sentimental value that any item might have for the resident, or would have but for the resident’s incapacity.

(3) The managers of an authorised establishment shall not, without the consent of the supervisory body, manage any matter if that matter has a value greater than that which is prescribed for the purposes of this subsection.

(4) The supervisory body may in relation to an individual resident permit the managers of the authorised establishment to manage any matter which has a value greater than that which is prescribed in relation to it under subsection (3).

(5) For the purpose of this section, “manage” denotes no greater responsibility than complying with the duties set out in this section.

Supervisory bodies

40

(1) The supervisory body for the purposes of this Part is, in relation to—

(a) a registered establishment which is—

(i) registered under the Public Services Reform (Scotland) Act 2010, Social Care and Social Work Improvement Scotland;

(ii) registered under the National Health Service (Scotland) Act 1978, Healthcare Improvement Scotland;

(b) an unregistered establishment, the Health Board for the area in which the establishment is situated;

and any reference in this Part to an authorised establishment in relation to a supervisory body is a reference to an authorised establishment for which the supervisory body is responsible.

(2) The supervisory body shall from time to time make inquiry as to the manner in which the managers of an authorised establishment are carrying out the management of residents’ affairs and in particular the manner in which they are carrying out their functions under section 41.

(3) The supervisory body shall investigate any complaint received as to the manner in which the managers of an authorised establishment are managing residents’ affairs.

(4) The Scottish Ministers may, as respects any authorised establishment, amend subsection (1) by substituting for the supervisory body allotted to that establishment a different supervisory body..

Duties and functions of managers of authorised establishment

41

The managers of an authorised establishment shall, in relation to residents whose affairs they are managing under section 39—

(a) claim, receive and hold any pension, benefit, allowance or other payment to which the resident is entitled other than under the Social Security Contributions and Benefits Act 1992 (c.4), the State Pensions Credit Act 2002 (c. 16) , Part 1 of the Welfare Reform Act 2007 or Part 1 or 4 of the Welfare Reform Act 2012;

(b) keep the funds of residents separate from the funds of the establishment;

(c) comply with any requirements of the supervisory body as respects keeping the funds of residents separate or distinguishable from each other;

(d) ensure that where, at any time, the total amount of funds held on behalf of any resident exceeds such sum as may from time to time be prescribed they shall be placed so as to earn interest;

(e) keep records of all transactions made in relation to the funds held by them in respect of each resident for whose benefit the funds are held and managed and, in particular, ensure that details of the balance and any interest due to each resident can be ascertained at any time;

(f) produce such records when requested to do so by the resident, his nearest relative, his named person or the supervisory body;

(g) spend money only on items or services which are of benefit to the resident on whose behalf the funds are held;

(h) not spend money on items or services which are provided by the establishment to or for such resident as part of its normal service;

(i) make proper provision for indemnifying residents against any loss attributable to—

(i) any act or omission on the part of the managers of the establishment in exercising the powers conferred by this Part or of others for whom the managers are responsible or attributable to any expenditure in breach of paragraph (g);

(ii) any breach of duty, misuse of funds or failure to act reasonably and in good faith on the part of the managers.

Authorisation of named manager to withdraw from resident’s account

42

(1) On an application in writing by the managers of an authorised establishment the supervisory body may issue a certificate of authority under this section in relation to any resident named in the application.

(2) An application under subsection (1) shall specify one or more persons (being managers, officers or members of staff of the establishment) who shall exercise the authority conferred by this section.

(3) A certificate of authority shall be signed by the officer of the supervisory body authorised by the body to do so and shall—

(a) specify accounts or other funds of the resident;

(b) name the persons specified in the application (the “authorised persons”);

(c) specify the period of validity of the certificate of authority, being a period not exceeding the period of validity of the certificate issued under section 37(2).

(4) The authorised persons may make withdrawals from such account or source of funds of the named resident as is specified in the certificate of authority and the fundholder may make payments accordingly.

(5) The supervisory body may at any time after it has issued a certificate of authority, revoke it and if it does so it shall notify the fundholder of the revocation.

Statement of resident’s affairs

43

(1) In this section, “resident” means a resident of an authorised establishment whose affairs are being managed in accordance with the provisions of this Part and “statement” means a statement of the affairs of the resident.

(2) Where a resident ceases to be incapable of managing his affairs, the managers of the establishment shall prepare a statement as at the date on which he ceases to be incapable and shall give a copy to him.

(3) Where a resident moves from an authorised establishment to another authorised establishment, the managers of the establishment from which he moves shall, except where he has ceased to be incapable, prepare a statement as at the date on which he moves and shall send a copy of the statement to the managers of the other establishment.

(4) Where a resident leaves an authorised establishment, other than to move to another authorised establishment and except where he has ceased to be incapable, the managers of the establishment shall prepare a statement as at the date on which he leaves and shall give a copy of the statement to any person who appears to them to be the person who will manage his affairs.

Resident ceasing to be resident of authorised establishment

44

(1) Where a resident ceases to be a resident of an authorised establishment, or ceases to be incapable, the managers of the establishment shall continue, for a period not exceeding 3 months from the date on which he ceases to be a resident or, as the case may be, to be incapable, to manage his affairs while such other arrangements as are necessary for managing his affairs are being made.

(2) At the end of the period referred to in subsection (1) during which the managers of the establishment have continued to manage the resident’s affairs, they shall prepare a statement and shall give a copy of it to—

(a) the resident, if he has ceased to be incapable; or

(b) any person who appears to them to be the person who will manage his affairs.

(3) Where a resident ceases to be a resident of an authorised establishment and his affairs are to be managed by another establishment, authority or person (including himself) the managers of the establishment shall take such steps as are necessary to transfer his affairs to that establishment, authority or person, as the case may be.

(4) Where a resident ceases to be a resident of an authorised establishment the managers of the establishment shall within 14 days of that event inform—

(a) the supervisory body; and

(b) where the resident has not ceased to be incapable and has moved neither—

(i) to another authorised establishment; nor

(ii) into the care of a local authority,

the local authority of the area in which they expect him to reside.

Appeal, revocation etc

45

(1) Where it appears to the supervisory body that the managers of an authorised establishment are no longer operating as such or have failed to comply with any requirement of this Part or that, for any other reason, it is no longer appropriate that they should continue to manage residents’ affairs it may revoke that power to manage

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where a registration or a power to manage has been revoked under this section, the supervisory body shall within a period of 14 days from such revocation take over management of the residents’ affairs and, where they do so, comply with the requirements imposed by and under this Part upon the managers of an authorised establishment.

(4) The supervisory body shall, within the period of 3 months after taking over management of residents’ affairs under subsection (3), cause that management to be transferred to such other establishment, authority or person (who may be the resident) as they consider appropriate.

(5) Where the supervisory body is satisfied that the circumstances mentioned in subsection (1) no longer apply in relation to an establishment whose power to manage it has revoked, it may annul the revocation of the power and, where necessary, of the registration.

(6) Any decision of the supervisory body may be appealed to the sheriff, whose decision shall be final.

Disapplication of Part 4

46

(1) This Part shall not apply to any of the matters which may be managed under section 39 if—

(a) there is a guardian, continuing attorney, or other person with powers relating to that matter; or

(b) an intervention order has been granted relating to that matter,

but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian, continuing attorney, other person or intervention order.

(2) In this section any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a continuing attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed), relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.

PART 5 — MEDICAL TREATMENT AND RESEARCH

Authority of persons responsible for medical treatment

47

(1) This section applies where any of the persons mentioned in subsection (1A)—

(a) is of the opinion that an adult is incapable in relation to a decision about the medical treatment in question; and

(b) has certified in accordance with subsection (5) that he is of this opinion.

(1A) The persons are—

(a) the medical practitioner primarily responsible for the medical treatment of the adult;

(b) a person who is—

(i) a dental practitioner;

(ii) an ophthalmic optician;

(iii) a registered nurse; or

(iv) an individual who falls within such description of persons as may be prescribed by the Scottish Ministers,

who satisfies such requirements as may be so prescribed and who is primarily responsible for medical treatment of the kind in question.

(2) . . . The person who by virtue of subsection (1) has issued a certificate for the purposes of that subsection shall have, during the period specified in the certificate, authority to do what is reasonable in the circumstances, in relation to . . . the medical treatment in question , to safeguard or promote the physical or mental health of the adult.

(2A) Subsection (2)—

(a) does not affect any authority conferred by any other enactment or rule of law; and

(b) is subject to—

(i) the following provisions of this section;

(ii) sections 49 and 50; and

(iii) sections 234, 237, 240, 242, 243 and 244 of the 2003 Act.

(3) The authority conferred by subsection (2) shall be exercisable also by any other person who is authorised by the person on whom that authority is conferred to carry out the medical treatment in question and who is acting—

(a) on his behalf under his instructions; or

(b) with his approval or agreement.

(4) In this Part “medical treatment” includes any procedure or treatment designed to safeguard or promote physical or mental health.

(5) A certificate for the purposes of subsection (1) shall be in the prescribed form and shall specify the period during which the authority conferred by subsection (2) shall subsist, being a period which—

(a) the person who issues the certificate considers appropriate to the condition or circumstances of the adult; but

(b) does not exceed—

(i) one year; or

(ii) if, in the opinion of the person issuing the certificate any of the conditions or circumstances prescribed by the Scottish Ministersapplies as respects the adult, 3 years,

from the date of the examination on which the certificate is based.

(6) If after issuing a certificate, the person who issued it is of the opinion that the condition or circumstances of the adult have changed he may—

(a) revoke the certificate;

(b) issue a new certificate specifying such period not exceeding—

(i) one year; or

(ii) if, in the opinion of that person any of the conditions or circumstances prescribed by the Scottish Ministers apply as respects theadult, 3 years,

from the date of revocation of the old certificate as he considers appropriate to the new condition or circumstances of the adult.

(7) The authority conferred by subsection (2) shall not authorise—

(a) the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the circumstances;

(b) action which would be inconsistent with any decision by a competent court;

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